Whether or not your friends and family get a kick out of your misery at work, that online post of yours might tick off your employer. But what rights do employers have to restrain their employees from complaining about them online? Can employers punish employees for posting their grievances online? How do courts differentiate between “protected” and “tantrum” posts? What is the Government’s view on employees’ social media postings? In 2011, Pier Sixty LLC fired Hernan Perez for labeling his supervisor a “nasty M.F.” and using similarly profane language against his supervisor’s family in a Facebook post that ended with a plea to “Vote YES for the UNION.” In a 2016 decision, the Second Circuit enforced the National Labor Research Board’s (NLRB) decision and found that the employee was protected under the National Labor Relations Act (NLRA) because the post was in relation to a union-related activity.
The future of ride-sharing companies has hung in the balance for more than two years while class actions and labor complaints were pending against industry giants Uber, Lyft and others. The ride-sharing companies have primarily fought with their drivers over the driver’s employment status—a conflict between whether the drivers are employees entitled to benefits or independent contractors responsible for paying for their own expenses such as gas and vehicle maintenance. (See our earlier posts, Uber Is Driving an Unknown Road and Avoiding Uber Trouble via Good Terms of Service.) After a tide of unfavorable court decisions for its competitor Uber, on Tuesday, Lyft agreed to settle a California class-action lawsuit brought in 2013 by its drivers seeking reclassification from independent contractor to full-time employees and the benefits associated with employee status.
Notwithstanding that the people involved are often surprised at their public exposure, it has become somewhat commonplace for individuals to be either caught on video by a smartphone or to have a social media website posting that demonstrates poor judgment go viral. All employers should consider having a social media response plan for just these sorts of incidents, in some cases to protect other employees and in many cases to protect the employer’s brand and reputation. Even then, employers must strike a fine balance in navigating their rights and responsibilities towards all affected by the sudden exposure.
In early November, an administrative law judge of the National Labor Relations Board dismissed a complaint filed against an employer, finding that the employer did not violate the National Labor Relations Act by withdrawing rehire offers from two employees’ based on their Facebook conversation.
The two employees worked for a non-profit corporation’s teen center. Shortly after the employees were issued rehire letters, they had a Facebook conversation regarding their work at the teen center. The conversation included a large amount of profanity as well as statements that the employees would not ask permission to engage in certain activities; would do whatever they wanted with the center’s funds; and would generally “raise hell.”
Another employee saw the conversation and sent screenshots to the director of the teen center. Letters rescinding the rehire offers were sent to the employees, citing concerns that they would not follow directions and could endanger the children at the teen center.
As in many recent cases, the administrative law judge found that the employees were engaged in “concerted activity” when expressing disagreement with management’s running of the teen center. The judge noted that the Facebook conversation included discussion of (1) how the employees were treated, (2) the employer’s failure to respond to certain employee concerns, and (3) the one employee’s demotion.
not every instance of concerted activity is protected. The judge found that the employer could reasonably and lawfully conclude that the employees’
actions were not protected. The judge noted the employer’s arguments (1)
that its funding from the government and donors could be impacted by the comments, and (2) that the safety of youth served by the teen center could be jeopardized.
While not every social media-related firing may be unlawful, employers should still be aware of the NLRB’s crackdown on social media policies.
Last week, in Bland v. Roberts, the U.S. Court of Appeals for the Fourth Circuit handed a constitutional victory to Facebook and two plaintiffs who lost their jobs after displaying online support for the incumbent’s opponent in a sheriff’s election. Reversing the district court decision, which said that “liking” a Facebook page was not sufficient “expressive speech” to warrant First Amendment protection, the appellate court ruled that the act was “pure speech,” as well as symbolic expression.
For more information, read the client alert: Free Speech Protection for Facebook “Likes” by Public Employees
On August 29, 2013, Gov. Chris Christie signed New Jersey’s social media privacy law, making New Jersey the twelfth state to enact such laws governing employers. (Various states have enacted similar laws governing institutions of higher education.)
Christie’s signature ends an approximately year and a half long legislative process: the bill was first introduced on May 10, 2012. As discussed in prior posts on this blog (New Jersey Assembly Unanimously Passes Revised Social Media Bill, New Jersey Senate Unanimously Passes Revised Social Media Bill), the bill was conditionally vetoed by Christie in May of 2013, then passed again by the Assembly in May and the Senate in August.
New Jersey should be the last state to enact such a law until the various state legislatures begin their next sessions. But with 24 states having proposed – but not enacted – social media laws in 2013, more can be expected in the future.
On August 19, 2013, the New Jersey Senate passed – by a vote of 36 to 0 – a revised bill barring employers from seeking access to employees’ social media accounts. The bill was previously approved by the New Jersey Assembly on May 20, 2013, as discussed in a prior post on this blog.
A prior version of the bill also passed both houses but was conditionally vetoed by Gov. Chris Christie, who expressed concerns about some of the bill’s employee-friendly provisions. Among Christie’s recommended changes was the removal of a private cause of action by employees.
The bill now awaits Christie’s signature. Though the legislature adopted all of the Governor’s recommendations, it remains to be seen whether Christie has additional concerns about the new law.
On May 21, 2013, Washington’s governor signed a new law protecting employee social networking accounts.
The new law, which goes into effect on July 28, 2013, prevents employers from requesting, requiring or coercing an employee or applicant to disclose login information for the employee’s personal social networking account. Employers also may not ask employees to access such accounts in the employer’s presence; add the employer to the employee’s contacts; or alter third party access settings. Work-related accounts and devices paid for or supplied by the employer are exempt.
If an employer inadvertently receives login information, it is not liable for possessing the information but may not use it to access the employee’s account.
Importantly, employers may still:
- Comply with the requirements of state or federal law;
- Conduct investigations to comply with laws against work-related employee misconduct based on receiving information about the employee’s activity; and
- Conduct investigations based on receiving information about the unauthorized transfer of proprietary or confidential information or financial data.
The law creates a private cause of action for employees and applicants. Prevailing plaintiffs may be awarded equitable relief, actual damages, a $500 penalty, and reasonable attorneys’ fees and costs. However, a court may also award reasonable expenses and attorneys’ fees to a prevailing defendant if the judge determines that the action was frivolous and without reasonable cause.
Washington joins Maryland, Illinois, California, Michigan, Utah, Arkansas, and Colorado in enacting such laws. New Mexico has enacted similar legislation, but it prohibits access only to the accounts of prospective employees.
To read more about this law, see Substitute Senate Bill 5211.
On May 20, 2013, the New Jersey Assembly passed – by a vote of 77 to 0 – a revised bill barring employers from seeking access to employees’ social media accounts.
The bill incorporates changes suggested by Governor Chris Christie, including the elimination of a private cause of action. Instead, the law will be enforced by the New Jersey Commissioner of Labor and Workforce Development. Employers would be subject to a maximum civil penalty of $1,000 for the first violation and $2,500 for each subsequent violation.
Under the proposed law, employers may not request or require a current or prospective employee to provide a user name, password, or any other form of access to a personal social networking account. The law applies only to purely personal accounts; the law does not apply to accounts used for business purposes or policies regarding employer-issued devices.
The revised bill now awaits passage by the state Senate, where the prior version of the bill passed with a vote of 38-0.
For more information, please read the Social Media Privacy Bill.
Thank you to everyone who joined us in both New York and Washington, DC for our Social Media Week events – Game On!
Special thank you to all of our panelists: Randy Leibowitz, Mike Scafidi, Tim Ettus, Lou Kerner, Peter Corbett, Jim Gatto, Sean Kane, Lauren Lynch Flick and Tina Kearns (many featured in the picture and video below).